Legal Challenge to Direct Provision in the High Court

Later today (Monday, 29 July 2013), a legal challenge is expected to be brought before the High Court challenging the system of direct provision in Ireland. The challenge is been brought by six applicants who are residing in the direct provision system in the application of N.M and others v Minister for Justice and Equality, Minister for Social Protection, Attorney General and Ireland (Record No. 2013 553 JR).

This challenge also deals with the issue of subsidiary protection, however this post will focus solely on the issue of direct provision.

The applicants are a family of six, which includes the mother and father, along with their children ranging in ages from 20 to just a few weeks old. The applicants are originally from the African continent and have been resident in direct provision centres for just under four and a half years.

The direct provision system is challenged in a number of respects, including:

The system of direct provision has no legal basis, was unlawfully established and continues to operate unlawfully, through ministerial circulars and administrative arrangements without any legal basis. This is a violation of Article 15.2.1. of the Constitution which provides the: “sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State”. On this blog, I have repeatedly made the argument that the direct provision system is without any legal basis and by operating the system of direct provision, the various government departments are acting outside their powers (see here, here, here, here, here, here ,here and here). I have also examined this issue in my recently published article in the Journal of Social Security Law, “Social Welfare Law and Asylum Seekers in Ireland: An Anatomy of Exclusion” (a pre-peer reviewed version of this article is available here). The applicants are requesting a declaration from the High Court that the setting of the rate of direct provision allowance of €19.10 per week per adult and €9.60 per week per child, is ultra vires the Social Welfare Consolidation Act 2005 (as amended). The applicants are seeking an order Mandamus requiring the Department of Justice and/or the Department of Social Protection to bring forward legislative proposals for pitting in place an appropriate statutory scheme for the provision of accommodation and financial allowances for the applicants. The applicants further argue that the direct provision system violates rights to private and family life under the Constitution and under the ECHR.

The exclusion of asylum seekers from receiving any form of social assistance payments (except for exceptional or urgent needs payments) through the habitual residence condition is unconstitutional in that it breaches personal, family and equality rights under the Constitution and/or a violation of Article 8 ECHR (right to private and family life), on its own or in conjunction with Article 14 ECHR (non-discrimination in the enjoyment of ECHR rights).

The failure of the Minister for Justice to consider the adult applicants request to be provided with a right to work and to seek work pending the outcome of the subsidiary protection application is unconstitutional pursuant to the obligation on the State to defend and vindicate rights of individuals and the right to family and private life and is unjustifiable unequal treatment under Article 40.1 of the Constitution.

It remains to be seen whether the applicants will be granted leave to challenge the system of direct provision. Legal arguments aside, life in direct provision is dehumanising. There is a total lack of respect for dignity of individuals, a highly controlled environment, struggling to survive on a meagre financial allowance, an inability to feel included within the community, the inability of children to grow up in a normal family centred household, the stress, boredom and anxiety for the adults of having nothing to do all day. This is a day in the life of a direct provision resident. At a time when Ireland is rightly correcting historical wrongs of our past institutionalisation of women, the on-going scandal that is the system of direct provision, may finally be put under the spotlight. The current government (including some Ministers who vocally opposed direct provision in opposition) need to reflect on the untold damage that direct provision is having on its residents.

Update 14:05, 29/07/2013: Christine Bohane from The Journal.ie reports that the case has been put back for mention to September 17 2013. The Journal reports the following comments made by Mr Justice Colm Mac Eochaidh and Saul Woolfson (barrister acting for the applicants):

Mr Justice Colm Mac Eochaidh said that there was a “need for urgency” for the matter given what he described as the “unacceptable circumstances” of the direct provision system.

“There is no debate about that any more,” he said.

Barrister Saul Woolfson acting for the six applicants said the issues raised are “significant”, to which Judge Mac Eochaidh replied “I’m aware”.

Update 16:50, 21/10/2013: Leave has now been granted to these applicants, along with two other families. The other two families are making similar arguments to above. Applicants M are a single mother and child. Applicants X are a couple and child. Both families live in hostel/former hotel direct provision accommodation. Ruadhan Mac Cormaic’s report on the granting of leave by the High Court is available here.